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What does the term ‘heightened scrutiny’ mean, and why is it important to understand its significance?
Written by Adam Liptak
Updating from the capital
The issue being considered by the judges is whether a Tennessee law that prohibits certain medical treatments for transgender minors goes against the equal protection clause of the Constitution.
Laws that are challenged on the basis of rationality are usually reviewed with a less strict and deferential approach by the courts, known as rational basis review. This means that almost any reason given for the law will be accepted, and it is highly likely that the state’s argument for medical safety would meet this standard.
Laws that show bias based on gender are closely examined under a stricter review process that requires states to prove that the laws are directly linked to achieving a significant goal. This can be a difficult challenge to overcome.
However, there is a disagreement between the parties on whether the Tennessee law shows bias or prejudice based on gender.
Elizabeth B. Prelogar, the U.S. solicitor general for the Biden administration, argued before the judges that the law in question inevitably considers gender.
In this scenario, the writer explains that if a state prevents a female assigned at birth adolescent from taking testosterone to transition to male, but permits a male assigned at birth adolescent to do so, the state is using gender as a basis for its decision and must provide a strong justification for this law.
During a court session, Jonathan Skrmetti, who represents Tennessee as its attorney general, explained to the judges that the state’s law does not make any distinctions based on gender.
He stated that there is a distinction made between minors who are looking for drugs to transition their gender and minors who are seeking drugs for different medical reasons. This distinction includes both boys and girls.
Ms. Prelogar suggested that the Supreme Court should consider giving special attention to cases involving discrimination based on transgender status, but it is not expected that this argument will be successful.
According to a report from Georgetown’s Supreme Court Institute in September, there have been no new classifications added to trigger heightened scrutiny by the court in many years. The report suggests that the chances of the court adding new classifications now are extremely low.
Adam Liptak is a journalist who specializes in reporting on the Supreme Court and legal news. He studied at Yale Law School and worked as a lawyer for 14 years before starting at The New York Times in 2002. To learn more about Adam Liptak, click here.
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